INTELLECTUAL PROPERTY LAW: Meaning and Forms of Protection

You may be wondering what exactly is intellectual property law(IPL) all about. IPL is an area of law which deals with works that are created from the human intellect.

Intellectual property is basically a work one creates with his mind or intellect, if you will, and as such has full legal rights over such a work. You know the way authors of a book, inventors of a machine, or the writer of music somehow ‘own’ their works. From this particular ownership, some consequences flow and we cannot just copy or buy a copy of their works without consideration to their rights. Even designers of furniture, wallpaper and the like also have some sort of protection attributable to them. Each time we buy an item, a part of the proceeds go back to the original owner of such idea as recompense for money, effort and time they put into the creation of such idea. This has thus resulted in worldwide development of industries encouraging new and fresh talent to produce more original ideas and works.

Intellectual property(IP) can protect books, film, recordings, paintings, performances, computer programs, brands and logos, products whose reputation derives from their place of origin, shapes and other artistic aspects of a product in the form of its industrial design and also inventions. The forms of protection under intellectual property rights are not limited to the ones listed here.

All IP rights are also designed with a limited time period, some depending on payment for maint the IP right, after which they fall into the public domain to be used for further endeavors.

It should be noted that for a work to gain IP protection it has to fall under a specific criterion. Intellectual Property Right laws are silly focused on protecting works of the human intellect and not works of a machine or a program. For instance, copyright laws protect literary and artistic works of the human intellect and the same applies to all other areas of Intellectual Property Rights. The various forms of IP rights protection will be discussed briefly and individually in this article.

The first from of protection is Copyright. Copyright is concerned with protecting works of the human intellect. The domain of copyright is the protection of literary and artistic works which include writings, music, works of the fine arts such as paintings and sculptures, and technology based works such as computer programs and electronic databases. However, copyright protects the expression of thoughts and not mere ideas. So just imagining a plot does not necessarily mean it gains protection but when you express that idea in a synopsis like say a play, it would be considered a creative expression of such idea. The only requirement for protection under this head of IPR is that the work should be original. The exact meaning of this requirement varies from country to country and it often determined by case law. The court held in ICIC (Directory Publishers) Ltd v Ekko Delta (Nig) Ltd¹ that a product must be of independent skill, judgment and labour to enjoy copyright protection and mere copyists cannot enjoy copyright/ claim legal ownership over a compiled work. Copyright is governed internationally by the Berne Convention (1886)².  In Nigeria, the term of copyright protection is 70years from the end of the year in which the author died. There are other international conventions and agreements which also govern copyright protection³, TRIPS Agreement (1994), WIPO Copyright Treaty (1996), and the Marrakech Treaty (2013).  Each of these international agreements have their specific areas of protection concerning copyright laws.

Trademarks existed in the ancient world when Indian craftsmen used to engrave their signatures on their artistic creations before sending them out. Trademarks have been used to simplify the identification by consumers of goods and /or services as well as guarantee their quality and value. A trademark is any sign or any combination of signs used to distinguish the goods and/or services offered by one undertaking from those offered by another. There are basically two main characteristics of a trademark; it must be distinctive and it must not be deceptive. Article 15.1 of the TRIPS Agreement spells outs the characteristics of potential trademarks in more detail. International laws which govern trademark protection are; the Madrid System, the Trademark Law Treaty adopted in 1994 and the Singapore Treaty on the Law of Trademarks adopted in 2006.

Geographical Indications (GI’s) are another for of IP which deserve protection. They are signs identifying goods that have a specific geographical origin and possess a given quality, reputation or other characteristic that is essentially attributable to that origin. They can be used for both agricultural and industrial products. The Paris Convention however for the protection of industrial property does not use the term geographical indication rather is refers to is as appellations of origin⁴. The WTO TRIPS Agreement, Article 22⁵, defines the term geographical indications as indicatons which identify a good as originating in the territory of a member, or a region, or a locality in that territory where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. The term appellation of origin is defined in the Lisbon Agreement (1958).  International agreements which offer protection for GI’s include; the Paris Convention (1883), Madrid Agreement and Protocol (1891& 1989), Lisbon Agreement (1958) and  TRIPS Agreement (1994).

And industrial design relates to the appearance of an article which results from features such as lines or colours of the article or its ornamentation. In principle, in accordance with the TRIPS Agreement, in order to be protected, independently created industrial designs must be new or original. An industrial design is considered to be new if it has not previously been disclosed to the public and it is considered original if it significantly differs from known designs or combinations of know features. Protection is granted for a limited period. It amounts to at least 10years account to the TRIPS Agreement but in other countries, the duration of protection is longer ranging from 15 to 25 years per national jurisdiction and the total duration is divided into successive renewable periods.⁶

A patent is a legal document that grants an exclusive right on the patented invention which is a product or a process that provides in general a new way of doing something or offers a new technical solution to a problem. It is generally considered that the first patent for and industrial invention was granted to Filipino Brunelleschi in 1421 in Florence. International patent law include; Paris Convention for the protection of industrial property, Patent Cooperation Treaty(PCT), Budapest Treaty on International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement). However, not everything can be patented, there are some exclusions which include inter alia; scientific theories, mathematical methods, diagnostic, therapeutic and surgical methods for the treatment of humans or animals, a machine which goes against the laws of nature… . For your invention to qual for a patent, it must be new or novel, it must involve and inventive step and it needs to be industrially applicable or useful.

This article has covered some of the areas of protection that are available under IPL. It should be noted that the forms of protection available under IPL are not limited to those mentioned in this article. Intellectual Property Law is a very important aspect of law which protects individuals work that are created from their thoughts and ideas. This rights are granted to individuals who develop ideas or creation and are new, novel and original, never before thought of ideas in the case of patents. They are a necessary in the world today and they are ever evolving to encompassing new emerging fields and ideas.

Bibliography

Cases

ICIC (Directory Publishers) Ltd v Ekko Delta (Nig) Ltd [1977] FHCLR 346

Treaties and International Agreements

Agreement on Trade-Related Aspects of Intellectual Property Rights (signed 15 April 1994, entered into force 1 January 1995)

Berne Convention for the Protection of Literary and Artistic Works (signed 9 September 1886, entered into force 5 December 1887)

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (signed 28 April 1977, entered into force 9 August 1980)

Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (signed 31 October 1958, entered into force 25 September 1966)

Madrid Agreement Concerning the International Registration of Marks (signed 14 April 1891, entered into force 15 July 1892) and Protocol Relating to the Madrid Agreement (signed 28 June 1989, entered into force 1 December 1995)

Marrakech Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (signed 27 June 2013, entered into force 30 September 2016)

Paris Convention for the Protection of Industrial Property (signed 20 March 1883, entered into force 7 July 1884)

Patent Cooperation Treaty (signed 19 June 1970, entered into force 24 January 1978)

Singapore Treaty on the Law of Trademarks (signed 27 March 2006, entered into force 16 March 2009)

Trademark Law Treaty (signed 27 October 1994, entered into force 1 August 1996)

WIPO Copyright Treaty (signed 20 December 1996, entered into force 6 March 2002)